Those Damned Activist Judges
Don't worry this is not going to turn into a legal blog, it's already too often political.
But, did you know that the word marriage does not appear in the US Constitution? It didn't appear in the Georgia constitution until 2004 when an anti gay marriage clause was added. Even that clause does not recognize a right to marry, it's one of those "unenumerated rights" reserved to the people in the ninth amendment.
So, I've done a little searching.
The word vote does not appear in the US Constitution until you get to the fifteenth amendment which barred discrimination in voting based on race, color or "previous condition of servitude. "Women got the right to vote in the nineteenth amendment. The twenty-sixth amendment lowered the age to vote to eighteen. The "right" to vote prior to passage of the amendments was inferred from the provisions for elections and the fact that people had been voting for centuries, another of one of those unenumerated rights. And, notice there is no prohibition against not letting people vote for religious reasons. Does anyone seriously think that barring say, Lutherans, from voting is constitutional?
Telephones didn't exist at the time the fourth amendment was written; yet, judges inferred that the amendment applied to government wiretapping, based on the inferred right of privacy.
The word abortion of course doesn't appear in the US Constitution, the right to provide and have one was inferred from various clauses and amendments.
My point is, I guess, that law, including constitutional law, is not static. We have a centuries long tradition of judges looking at new developments and applying law to them. Those judges aren't activists, they are doing their jobs, for better or worse, including those liberal wackos in California last week.
5 comments:
Someone I know recently commented to me something along the lines of:
"In America, you can do something unless there is a specific law prohibiting it. In Europe, you can't do anything unless there is a specific law allowing it."
Sounds like this person may have been making gross, inaccurate generalizations.
Times change, I am not a historian, but I am sure many of these issues were not around when our founding fathers created the Constitution. My thought is they created it knowing things would change and never expected it to last for eternity Growth was eminate, with growth comes change. I am sure if any original authors of the document were to come back today, first they would be appauled, and second they would realize time forces change
Pos, your friend was right about America. All of my examples are things we can do without blessing by government, that government challenged at one time or another, and lost.
All of our "rights" are natural, basic common sense matters that have been codified and/or constitutionalized.
Wendy, I hope that the Founders would not be appalled, though I'm sure they'd be amazed that the document has lasted this long. Their genius was creating a system of checks and balances with obligations and rights that people have bought. We pick at the rules and each other. We moan and cry. But, we accept the system because when followed, it is fair to all of us. We are all different with varying levels of ability; but, we get an equal shot at "Life, Liberty and the pursuit of Happiness."
What is remarkable that a document that was a political comprise turned out to be so brilliant. That was largely due to the fact that classical liberalism was the raging theory in intellectual circles and the constitution was drafted by elitists.
Indeed it is good those elitists managed to sneak in the Bill of Rights. I have seen polls where the amendments are presented to the people and they are told they are proposals currently before congress--the public always rejects them.
But, yes the constitution has to evolve. It was not handed down from God. It was flawed from the very beginning--slavery
Those judges become problems when they do not consider the law objectively but have a personal and/or political agenda that has little to do with the law, Constitution, or the case and everything to do with them personally.
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